EPA reopens consideration of pollution rule

J.D.Hillard

WASHINGTON (CBS.MW) - The Bush administration has agreed to reconsider proposed revisions to the Clean Air Act, but advocates on both sides of the issue say it won't open the door to major changes in White House anti-pollution policies.

Environmental and energy industry officials concur that the Environmental Protection Agency is almost certain to go through with its proposed changes, which critics say would allow polluters to skirt the landmark legislation.

Responding to petitions from several states and environmental groups, the EPA announced this week it will reconsider a policy that would change the criteria for requiring older power plants to install pollution control equipment.

The rules under question are part of the Clean Air Act's New Source Review program, which grants construction permits to old and new power plants. The Bush administration has proposed changes in the rules regarding older plants that environmental groups charge would significantly weaken the law.

However, the agency said in its announcement that it is standing by its proposed changes unless presented more convincing evidence.

EPA's announcement in the Federal Register, the official publication of government regulations, states, "Without prejudging the information that will be provided in response to this notice, we note that, to date, petitioners have not provided information which persuades us that our final decisions are erroneous or inappropriate."

The reopening of two more months of public comment does not mean EPA will give further consideration to comments criticizing the proposal, according to Ed Hopkins of the environmental group, Sierra Club.

"The comments of power plant owners and coal mining companies and other industry interests have far more weight than the comments of hundreds of thousands of other citizens," Hopkins said.

Hopkins suggested that EPA reopened comment because the expanded period of comment would help its case when the U.S. Court of Appeals for the District of Columbia takes up challenges to the rule.

Frank Maisano, a representative of the Electric Reliability Coordinating Council, which opposes New Source Review enforcement, suggested that EPA would pay more attention to the sort of comments that lawyers for environmental and energy advocacy groups submit compared with postcard campaigns that result in large numbers of comments.

"The comments they refer to are the administrative law form of spam," Maisano said.

He agreed with Hopkins, however, that the motivation for EPA's move probably had to do with helping the policy's chance in court.

Controversial rule from the outset

The policy EPA proposed would affect how it enforces the Clean Air Act. The Clean Air Act requires new power plants to install pollution control equipment, but under a provision referred to as "grandfathering," older power plants are exempt.

However, a part of the act known as the New Source Review requires a grandfathered plant that is expanding or replacing equipment, thereby increasing its pollution, to install pollution controls or offset the new pollution by cutting emissions elsewhere.

Critics of the controversial regulation have charged that the rule discourages older plants from upgrading and becoming more efficient, while supporters of the requirement claim it is essential to force older, dirty plants to clean up their act.

The New Source Review rule "perpetuated inefficient operating of coal-firepower plants," said Paul Oakley, executive director of the Coalition for Affordable and Reliable Energy.

Oakley said under New Source Review, a plant that wanted to install more efficient equipment would be required to also install expensive pollution controls.

The issue has become a particular source of contention between midwestern states, where there are older coal-fired electricity plants, and northeastern states that claim they are being blanketed with pollution from the midwestern plants.

The proposed changes

In October 2003, the Bush administration proposed a softening in the regulation by revising the rule so that grandfathered plants that replace parts totaling less than 20 percent of the value of the plant would not have to add pollution controls.

The move was immediately hailed by the energy industry and condemned by environmental groups.

"You can make more power with less coal if you are able to make those changes," said Oakley of the energy coalition group. "That's going to be realized ultimately in lower cost electricity."

But the Sierra Club's Hopkins said the proposal would undermine New Source Review.

"You can replace over five years an entire facility and still have the same air pollution control that you had back in the 1960s when the plant was built," Hopkins said.

The Court of Appeals for District of Columbia stayed the rule change in December to consider challenges from environmental groups, 14 states, and local governments.

The EPA said despite the recent legal hiccups, it will issue a final rule by the end of this year.

Intraday Data provided by SIX Financial Information and subject to terms of use. Historical and current end-of-day data provided by SIX Financial Information. All quotes are in local exchange time. Real-time last sale data for U.S. stock quotes reflect trades reported through Nasdaq only. Intraday data delayed at least 15 minutes or per exchange requirements.